¶1This judgment must be reversed, which is ordered at the cost of the prosecution. At various times the witnesses for the prosecution testified in response to questions by the state’s attorney that the driver of the milk wagon, from which the milk sample was taken, said that it was Wm. Corde’s (defendant’s) wagon. Such statements, counsel for defendant moved to rule out, which motion was overruled by the trial justice.
¶2These declarations were not a part of the res gestae; the driver’s declarations were not under oath — were not vital to the issues whether defendant was guilty as charged in the complaint of having “in his possession, with intent to sell as pure milk, one gallon of milk from which part of the cream had been removed, contrary to the statute,” etc.
¶3Especially when we consider the meagerness of any proof on the subject of the defendant’s doing anything as to this milk, we do not see that such proof was vital to the issue and had a controlling effect.
¶4I therefore put this reversal on the ground above stated — erroneous admission by the justice of hearsay proof.